(Ar)Rest Rooms

(Ar)Rest Rooms

The students in my senior thesis course at Macaulay Honors College, part of the City University of New York, were scheduled to present their original research at the annual National Conference on Undergraduate Research, in Asheville, North Carolina in early April. Those plans have been cancelled because the governor of New York has banned state-funded travel to North Carolina as long as its new law remains in effect, which “creates the grounds for discrimination against LGBT citizens.”

North Carolina’s HB2 bill prohibits local governments from passing anti-discrimination ordinances and would require, among other provisions, that people use the restrooms in public schools or government buildings that match the gender specified on their birth certificates.

This effort to clamp down on transgender people, and other discriminatory laws and regulations like it, suggests that if somehow public restrooms are kept distinct, pure, and strictly defined, the categories of male and female will be unambiguous and simple as well.

Bathroom bills imply that we live in (or should live in) an essentially heterosexual, black-and-white, male/female world, and that the “true” identity of intersex or transgender people can be easily revealed by testing their chromosomes and checking their anatomy.

There’s so much wrong with this, I barely know where to begin.

First of all, who is going to do the examinations on grade school kids? This anatomical policing won’t be confined to high school students because more and more kids are gender non-conforming at younger and younger ages.

And most people don’t get their chromosomes checked routinely. Who is going to pay for that?

More important, the violations of privacy this act necessitates horrifies me. Will school children’s permanent records now include information on whether they have a penis or a vagina? XX or XY chromosomes?

And what about the intersex kids? Approximately 1/2000 people have an intersex trait, which means that they are born with some sort of incongruence between their external anatomy, internal anatomy, chromosomes, and hormones.

Some might be born with atypical genitals (a micropenis, for example — will that be on a boy’s permanent record?) Or perhaps they look like a typical girl but have XY chromosomes, as in cases of Androgen Insensitivity Syndrome. Is that something for the whole school to know about? Would such a girl need to use the teachers’ bathroom because her XY chromosomes don’t match her typically female body? The enforcement of bathroom bills will make so many people uncomfortable and face social isolation, if not worse.

Throughout American history people have been obsessed with finding a clear-cut division between male and female. There’s the assumption that if we only dig hard enough we can distinguish between the boys and the girls. Somehow we can’t seem to get it right. And the reason we can’t get it right is that those distinctions aren’t there. Anatomy clearly doesn’t tell the whole story of one’s gender, and as it turns out neither do chromosomes and hormone levels.

There is no bright line.

Clearly such laws will cause needless misery among many intersex, transgender, and gender non-conforming people in North Carolina and elsewhere if the trend continues.

19% of respondents to a National Center for Transgender Equality and the National Gay and Lesbian Task Force survey reported being refused care due to their transgender or gender non-conforming status. (National Transgender Discrimination Survey Report on Health and Health Care, 2010, 5.)
19% of respondents to a National Center for Transgender Equality and the National Gay and Lesbian Task Force survey reported being refused care due to their transgender or
gender non-conforming status. (National Transgender Discrimination Survey Report on Health and Health Care, 2010, 5.)

Young transgender people already suffer disheartening hate and discrimination, and they have the suicide rates to show for it. Nationally, trans people are murdered in disproportionate numbers, particularly transwomen of color. They are four times more likely than the general public to be living in poverty, and nearly all report incidents of harassment at school when they were younger.

Social justice efforts need to prioritize the most vulnerable in the population, and it is shocking to me that our efforts focus on bathrooms when people are facing poverty and death. Clearly, all should be able to take care of their bodily needs comfortably, without fear of violence, without invasions of their privacy, and without their gender being questioned.

As for my disappointed students who won’t be able to present their research in North Carolina: the gender non-conforming ones will feel supported by Governor Cuomo’s ban, and the other ones will learn a powerful lesson about the unfairness of the world, and about public activism designed to achieve equality and social justice.

Elizabeth Reis is a professor of gender and bioethics at the Macaulay Honors College at the City University of New York. She is the author of Bodies in Doubt: An American History of Intersex, which was recently published in a 2nd edition, and Damned Women: Sinners and Witches in Puritan New England. She is also the editor of American Sexual Histories: A Social and Cultural History Reader.

1 thought on “(Ar)Rest Rooms

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      Thank you for this piece, it certainly covers a lot of issues here. However, I am from another country that has human rights legislation. This simplifies things a lot, a person can claim protection under the law as a protected class, and if they suffer discrimination they can raise a claim. In practice, there rarely are claims and I know of none of this nature. Yet obviously we have groups that would be affected too.

      I think a large part of the problem here is that it is being legislated – both ways, either to put strict limits on what people can do (and worryingly, this may be being used to roll back other protections) or it is based on gender identity or presentation (and worryingly, gender identity is not properly defined – it seems to be “gender identity is the identity a person has” or such, and gender presentation even though I’d readily agree no one should be discriminated against because of such trivial things as attire does tend to enshrine ideas and stereotypes about how people should be in the law). As you’ve said, the whole idea tends to give rise to very black and white ideas, and seems to have opened up a whole can of worms. It would seem that legislating identity rather than classes of people gives huge loop holes in the laws and rules. Point being anyone can identify as anything.

      Part of this is that concerns have been dismissed, I very much notice that despite incidents like e.g. the University of Toronto where they made toilets and other areas gender neutral and soon had voyeurism incidents that obvious issue that there may be some unscrupulous people exploit this has been ignored. I’m quite surprised no one has seemed to think that this could be misused, nor provisions added in to keep out those that may have existing convictions for sex crimes especially when this often involves changing rooms where people are more vulnerable. I can’t help but see some concerns as legitimate, it’s not all bigotry. Certainly, also I think if there is a particular risk of violence, that should be addressed. Men’s areas if they need to be safer, should be made safer. I think it’s unfair to dismiss women, and girls (especially as they develop) concerns, if male violence is a risk for those that don’t conform, it should be recognised that male violence is also a risk for women and girls as a group. That their comfort and privacy counts too, as well as other issues. The needs of different groups do need to balanced, especially when this clearly will have some major effects.

      The next thing is that real lack of problems otherwise, people do come in male or female and toilets and changing areas sorted on anatomy. You’d need a birth certificate on enrolling at school, that gives the required information and once old enough, generally you can trust people to sort themselves out because usually we use more cues than just genitals (not really sure why this is an argument though). Men tend to be taller for instance, their body shape is different and so on. Simple observation is all that is required. We’ve never needed to karotype everyone before, that isn’t necessary now. It’s been said probably those people have been quietly doing their own thing until now, and they probably have with little issue provided there is reasonable accommodation like some unisex, single user facilities if they need them.

      The needs do vary, women need stalls and sanitary units to manage menstruation, men can use a combination of urinals and stalls. Variations on the norm exist, but many of those people can be identified as male or female as well, and even if they do have an issue stalls exist within both female or male toilets or an extra private space (which should be open to all experiencing any possible discomfort so as not to single out individuals) could be provided. Really, say if a boy with hypospadias needs to use a stall, there wouldn’t be issue. I’m pretty sure it would be assumed they were doing number two’s. There are more ways of fixing it than legislating things.

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